June 27, 2006

Error Correction, O'Connor, Scalito

by Milbarge

Will wonders if the Roberts era will be characterized by more pure error correction decisions from the Court. It's dangerous to call a handful of cases a trend, but there are signs pointing in that direction. Prof. Berman offers some thoughts for why Recuenco may be more than that, but I don't see any great urgency for taking Marsh, Brigham City, or (especially) Youngblood, except that a majority of the Justices seemed to want to correct an error.

On the other hand, error correction is a lot of what the Court normally does anyway. As Goldstein noted, the Court reverses about 75% of the time anyway. Not all of those cases involve circuit splits or tremendously important issues. I think it would be more noteworthy if the Court started taking more cases just to affirm as nationwide policy a lower-court decision it thinks is right. (What would we call the opposite of "error correction"? "Correctness affirmance"?)

Much has been made of the shrinking Supreme Court docket (including by me here), but I don't think the Court should simply find some make-work just to appear busy at budget time. Obviously, it's hard to harness nine different cert philosophies into a coherent system, so we're probably always going to see some idiosyncratic grants. But I would rather the docket stay small if there's no compelling need for the Court to hear more cases. And I'm not convinced that pure error correction is enough to justify that. I'm okay with an "error-plus" calculus, which in practice seems to be what the Court uses about 75% of the time. I'm even kind of okay with "it's a Ninth Circuit case" being a valid "plus-factor" because an error in that circuit affects about a fifth of the nation's population. But with all the issues it could be deciding, the arguments for hearing cases like Marsh and Brigham City seem lacking. If this is indeed a trend, I'm not enthusiastic.

Changing the subject, Tom Goldstein considers the effects of the O'Connor/Alito switch on the re-argued cases. And Prof. Filler at the Co-Op yesterdaysuggested that we wouldn't have seen the fireworks in Marsh with O'Connor on the bench because she wouldn't have signed on to Souter's innocence argument, which provoked Scalia's ire. Reading Kennedy's opinion last week in Rapanos, I realized he's now the only Justice with any real tie to the west, and that O'Connor might have waxed even more rhapsodic about dry river beds and flash floods in the desert. (Kennedy cited the Los Angeles River.) Will and PG, do you have any thoughts about O'Connor's impact on this term, either before or after she left the Court?

Any thoughts on Gonzalez-Lopez, the right to counsel of choice case from Monday? Another nail in the "Scalito" coffin, after Zedner, the Speedy Trial Act case in which Scalia criticized Alito's use of legislative history? (Note that I argued here that any talk of a "rift" between the two after Zedner was hogwash.) Prof. Althouse offers some thoughts here. I never expected Alito to be nothing more than a Scalia clone, of course. I'm not sure I'm convinced by Scalia's opinion here, though.